Frustrated by "hired guns" swaying malpractice juries, Florida's doctors intend to scrutinize testimony from expert witnesses and punish those who give misleading information in court.
Under a program being developed by the Florida Medical Association, Doctors who have given questionable testimony would be subject to a process of peer review that could lead to a reprimand or possible expulsion from the FMA. The plan, modeled after a program used by the Hillsborough County Medical Society, may start as soon as next fall.
While the enforcement mechanisms remain weak, the FMA's approach opens a new front in doctors battle against soaring malpractice awards. Traditionally, doctors have attacked trial lawyers for driving up medical malpractice claims and damage awards, with little success. Now FMA officials are recognizing the pivotal role played by their fellow doctors, and aggressively going after them as well.
"Our problem is not the courts or attorneys," says Dennis Agliano, a Tampa surgeon and FMA board member who has spearheaded the program. "The problem is unethical doctors making good money to testify falsely."
Experts pay varies greatly, but some doctors who testify regularly are believed to make over $100,000 a year that way.
The Florida plan has already drawn strong criticism from plaintiffs lawyers, who accuse the FMA of trying to scare potential witnesses silent. Legal experts also question the group's enforcement power and legal standing to sanction doctors for expressing their opinion.
But doctors counter that experts who are honest on the stand have nothing to worry about. "We are not keeping doctors from testifying," says Dr. Agliano. "We just want them to testify truthfully."
Battle of Experts'
If it's successful, Florida's program could serve as a model for physician groups seeking to counter malpractice claims. There are only two other states - Illinois and California - where doctors have considered such a move, and neither one has a program in place yet. The American Medical Association, meanwhile, is studying the idea. "It is certainly an intriguing process and one we are watching closely," says spokesman Robert Mills.
The stakes are high for doctors and plaintiffs, because so many complex malpractice cases come down to which expert is more convincing. "You are talking about the heart of a malpractice case," says Ted Babbitt, a West Palm Beach attorney who represents malpractice plaintiffs. "It's a battle of experts every time."
Physicians aren't just looking to protect their pocketbooks from malpractice claims, although that is a major concern. They're just as worried about protecting their professional reputations at a time when the public has increased access to doctors' malpractice records.
Dr. Agliano and other doctors complain that judges are too lenient in allowing medical experts to deviate far from the general standard of care and express unproven theories in behalf of a plaintiff. That, the doctors say, unfairly influences jurors, who generally lack the expertise to determine if an expert's testimony is reliable.
One of the biggest gripes among doctors and malpractice insurers is about experts who are allowed to testify on matters outside their specialty. Bob White, an insurance official, recalls a case in Hillsborough County three years ago where a patient sued her gynecologist for failing to detect a mass, which turned out to be cancerous, during a routine breast exam.
But the plaintiff's expert witness was a pathologist, trained in a specialty that rarely, if ever, involves examining patients. The jury awarded the plaintiff $2.2 million, according to Mr. White, director of claims and loss prevention for Physicians Protective Trust Fund, Coral Gables. "You have people who haven't had any real practice time telling a specialist what the standard of care is," Mr. White says. "That's why doctors get so insulted."
This year and in the past, doctors and malpractice insurers sought a law requiring that expert witnesses be trained in the same specialty as the matter they are testifying on. But those efforts have failed - because of opposition from the plaintiffs bar, doctors say - leading to more calls for a peer-review system among doctors.
How It Works
The state wide program would probably work this way: After litigation is over, a doctor - or anyone for that matter - could file a complaint with the FMA about a particular expert's testimony . A panel of FMA members would quickly review the complaint for merit. If they think there's a case, the complaint would go before three specialists who deal with the issue involved. They would scrutinize the testimony independently, in a blind review with all the names and places blacked out.
If all three specialists agree that the expert blatantly misrepresented his credentials or the accepted standard of care, an FMA committee could issue sanctions ranging from a written reprimand to suspension or expulsion from the association.
In the year-old Hillsborough County program, which was recently put on hold pending formation of this state wide version, one out of the four complaints filed made it through the review process, and that doctor was asked to sign a letter affirming his commitment to ethical behavior after his testimony was deemed contrary to accepted standards. He complied.
But for now, both the FMA plan and the Hillsborough program lack the enforcement bite doctors want. For one thing, membership in the FMA is purely voluntary and only about half of Florida's 40,000 doctors are members. Any sanctions by the group, therefore, wouldn't affect a doctor's ability to practice. Indeed, in the Hillsborough case, the doctor singed the letter, but soon afterward quit the county medical society, with no blemish on his record.
Dr. Agliano would not identify the doctor, saying it was part of a confidential peer-review process. More serious cases would be made public, he says, and shared with national databanks that compile physician disciplinary records.
FMA officials envision referring the worst offenders to the Florida Board of Medicine, which can impose sanctions against a doctor's license. But the board has no authority under state law to discipline doctors for their conduct in the courtroom, says Allen Grossman, the board's general counsel.
The FMA hasn't approached the board with its plans yet. The board's role and other legal questions will be addressed during FMA meetings this summer.
Another drewback is that little could be done against out-of-state doctors, who handle more than 75% of the expert testimony given in Florida, by most estimates. To remedy that, Dr. Agliano suggests copying a California program that requires out-of-state experts to obtain a temporary medical lecense to testify as expert witnesses. The doctor could then be subject to a review in Florida and be reprimanded or barred from testifying in the state. But this, too, would require the Board of Medicine's cooperation.
Even without the Board's involvement, doctors working on the FMA program feel just the threat of peer review and possible public reprimand will be enough of a deterrent to keep expert witnesses in line.
"It will keep out the doctors who are not willing to undergo peer review," says Willion Luria, a plastic surgeon in Tampa who worked on the Hillsborough plan. "We want to get rid of the dangerous doctors, whether that's in the examination room, the operating room or the courtroom."
'Witness Intimidation'
But malpractice lawyers say the program goes too far to solve a problem that should be settled in the context of a courtroom. "I think they are returniing the days of a conspiracy of silence," says Neal Roth, aMiami attorney who specializes in malpractice. "This puts unreasonble peer pressure on doctors who are willing to stand up and be counted when their colleagues are negligent and injure patients."
Mr. Babbitt, the West Palm Beach lawyer, calls it "witness intimidation."
Plaintiffs attorneys acknowledge that there are medical experts for hire who are willijng to tailor their testimony to a specific case for money. But they argue that these "hired guns" typically wither under cross-examination by defense lawyers, and don't help win a case. "Who is the ultimate check on doctors who are unqualified, who are stretching the truth? They are called jurors," Mr. Roth says.
Legal experts, meanwhile, question whether the FMA may be creating more litigation problems for itself by targeting expert witnesses. Jeffrey Lewis, dean emeritus and law professor at the University of Florida, says he could see a medical expert who is sanctioned by the FMA suing the group for violating his free-speech rights or possibly for breaking racketeering laws. And the sanctioned doctor would have the advantage of syaing his or her testimony was already ruled admissible in court.
"They could open up a whole cornucopia of legal challenges," says Mr. Lewis. "I would be thinking long and hard about the dangers of this as opposed to a more cooperative venture with the courts."
To insulate the FMA from lawsuits, the group's general counsel has recommended that the Board of Medicine mete out all discipline in these cases.
Of course, plaintiffs lawyers point out that both sides can be guilty of offering "junk science" and misleading testimony. Dr. Agliano agrees, noting that the peer-review process would act on complaints against plaintiff or defense witnesses. It would also apply to all types of cases involving medical experts, from workers' compensation hearings to criminal trials.
"We are trying to take control of our own house," he says, "There has to be accountability."
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